Four convicts await execution or a miracle

It’s mid-2017. Abbas Nur called his father, Mohammed (51 years old), and said:

It’s mid-2021. Abbas and three of his inmates are still awaiting execution for “crimes” they were convicted of committing when they were under 18 years old - a death sentence that is in clear violation of the Sudan Child Act 2010.

Mudthar Al-Reeh, Fadl al-Mawla, Ahmad Jibril and Abbas Nur were all convicted and sentenced to death for murder under Article 130 of Sudan’s 1991 Criminal Act. So far, efforts to revoke the death sentence have failed. They have spent years behind bars where they endured harsh circumstances particularly in detention centers living with adults.

Abbas’ life changed forever on August 27, 2013 when he stabbed a boy to death during a fight in his neighbourhood. Abbas, who was 15 years old at the time, was transferred to the police station in the city of Rufaa in Al-Jazirah state in central Sudan where he was placed under tight security. On January 7, 2014, Abbas appeared before the court to face the charges. On September 2 that same year, his case was transferred to the Court of Appeal that ruled he shall be treated as an adult; hence to be sentenced to death later.

Lawyer Taha Fadl Taha, who is defending Abbas and the other three prisoners, said that these cases are “the strangest in Sudanese courts in terms of violations and extreme injustice.”

Taha, a member of Al-Insaf Center for the Defense of Human Rights in Khartoum, added: “Abbas violated the law when he was 15 years old, and the court sentenced him a year later to death by hanging in a violation of domestic and international laws.”

Ever since, Abbas’ family has spared no effort to save Abbas. According to his father, Abbas got into a fight with his friend while playing football in a neighbourhood in the city of Wad Madani in central Sudan. “The fighting escalated and Abbas stabbed his friend to death. He was then taken to the police station and to court (later),” Abbas’ father said.

Abbas picture on the day that he committed the crime

The trial court demanded transferring Abbas to the Youth detention Dar al-Tadbeer, but on January 2016, the case was transferred to the Court of Appeal which revoked the trial court’s decision and decided to consider Abbas as an adult although he was only 15 years old when he committed his crime. The Court of Appeal’s decision thus meant that Abbas could be facing the death penalty.

Violations and advocacy

The execution verdicts handed down to the four children between 2013 and 2019 pushed human rights organizations to launch a campaign entitled "No to executions of children" and to hold multiple protests in front of the judiciary headquarters in Khartoum during their trials. The campaigns calling for revoking the death sentences succeeded in convincing the authorities to remove the handcuffs and leg chains of the children in prison. The children, like all those sentenced to death, were handcuffed and kept in fetters because the Sudanese Penal Code stipulates doing so until their execution.

The organizers of the “No to executions of children” and other Sudanese human rights organizations were pinning their hopes on the Constitutional Court, the country’s highest judicial authority, to rectify the verdict. However, the Constitutional Court had a different opinion. Taha explained: “The verdict was issued according to a law that is not backed by any logic. We submitted an appeal to the Constitutional Court as we were seeking justice for Abbas. The court said that the case did not fall within its jurisdiction. However, the court had said otherwise in a previous case when it had issued its verdicts. It is (actually) based on this jurisdiction that it previously ordered implementing the Child Act in similar cases and revoked the death penalty. When it came to (Abbas’) case though, the court deviated from this usual approach and said it had no jurisdiction to look into the case.” It is worth noting that judges can convene and reject an appeal if they deem there are legal justifications for doing so.

Abbas’ father, Mohammed, said: “Abbas told me he (prefers to be) executed as soon as possible rather than living through this torment and anticipation. Every time I speak to him, he tells me: ‘This could be my last day, dad’.”

Fadl al-Mawla’s father echoed Mohammed Nur’s concerns saying: “This year, Fadl will have spent 14 years in prison. He has been prepared twice to be executed. He lives in (constant) fear and with anxiety, and despite that he sat for the examination of the intermediate certificate (that allow him to attend high school later) from inside prison this year.”

Fadl, who committed a crime when he was 15 years old in 2012, was referred to trial but the administration of the prison in central Sudan refused to take him in because he was a child. “That same year, he was transferred to the youth detention center Dar al-Tadbeer in Khartoum. He was later transferred to a civilian prison and by then, he had been sentenced to death. He has been living through fear ever since because he is locked up with adults. This is in addition to the burdensome financial costs for his family as he needs 30,000 Sudanese pounds ($60) a month for his expenses inside the prison. I had to quit work because of the ongoing trials and the reconciliation (efforts) that (have so far failed).”

When examining judicial decisions made by the same Constitutional Court’s judges who handed down the death sentence to the four children, we learnt that there have been verdicts that prohibited the execution of those who are below 18 years old. In 2013, the Constitutional Court finalized the contradiction between Child Act 2010 and the 1991 Criminal Act when it confirmed the inadmissibility of the death penalty in its verdicts in one of its cases (N.Q. Constitutional Court – M.D./Q.D./2005).

A similar approach was adopted in the case of child (M.D./Q.D./2018) and of child S.N. when it was decided that it was inadmissible to execute anyone below the age of 18 years even if they commit crimes of ‘hudud’ (Qur’anic prescribed punishment) and crimes of ‘qisas’ (retaliatory punishment) because the applied law is the Child Act 2010 and not the 1991 Criminal Act.

However according to Yasser Salim Shalby, the director of the Child Rights Institute, some judges have a different opinion. “Some judges think the Child Act contradicts Islamic sharia and believe that ages of detainees must be determined based on the indication of their puberty and not their actual age,” Shalby added: “Despite the fact that the Child Act 2010 clearly stipulated that a child is anyone below the age of 18 years, some judges have a different opinion.”

“During some training courses organized for judges by the Child Rights Institute, some judges firmly rejected executing children. However, they have actually issued verdicts sentencing those below the age of 18 years to death. When asked about this, they would argue that these convicts are not children but adults. When we noted that state institutions, like the armed forces, do not enrol anyone below the age of 18 years in their ranks and that driving licenses are not issued to anyone below this age as well, (they rejected this argument) and upheld their positions.”

After the children were sentenced to death, UNICEF issued a statement describing the verdict as a dangerous violation of international conventions. Tahani Elmobasher from the Child Protection section in UNICEF in Sudan voiced great concern over these verdicts and said: “We learnt about the Constitutional Court’s decision in support of the death sentence handed down to children. After researching (the circumstances of the crime), we learnt that Abbas committed the crime and was sentenced to death when he was still 15 years old. Afterwards, we, along with a number of children’s rights activists, began addressing the case.”

In 2019, following the collapse of the Islamists’ rule in Sudan, which was known for its extremism, radical changes were made to a number of laws in Sudan. The Justice Ministry approved amendments of some local laws such as ending the contradiction between the Criminal Law and the Family and Children Law – an amendment that children’s rights organizations have long been demanding.

Convicts however could not benefit from these amendments as they have been through the entire litigation process that ended with the Constitutional Court’s verdicts that must be implemented.

In a report published in 2010, The Committee on the Rights of the Child voiced its “concern at recent reports that children death penalty continues to be carried out” in Sudan, and reminded the latter that “the application of the death penalty to children is a grave violation of articles 6 and 37 (a) of the Convention (on the Rights of the Child).”

Meanwhile, Secretary-General of the National Council for Child Welfare Othman Sheeba revealed for the first time the numbers of children who face the possibility of execution.

“There are around 100 children who face the possibility of execution under Article 130 according to statistics we collected in 2019. Twenty of them had their cases settled with the victims’ families, and they have been released, but the rest still face the possibility of death sentence under Article 130, and they are supposed to benefit from the new amendments. However, we can say that death penalties against children are now a thing of the past.”

Taha, however, is not as optimistic about the amendments made to the Criminal Act.

“As men of law we doubt that amending the contradiction in the Criminal Act can put an end to death sentences against children. When the children were sentenced to death, the Child Act had already been in place, and what actually happened was a violation of that Act. Therefore, this amendment to the Criminal Act can also be (violated) and other children would be sentenced to death. The actual problems lie in the fact that some judges believe that the Child Act violates Islamic sharia; hence they overlook implementing the Act based on their ideological beliefs.”

Former Sudanese Member of Parliament and preacher Doctor Aisha al-Ghabshawi commented on the controversy regarding the Child Act’s violation of Islamic sharia and death sentences against children in a report prepared by the Child Rights Institute in cooperation with UNICEF. Ghabshawi noted that “Islamic scholar Shams al-A’imma Al-Sarakhsi said that, according to one account, Imam Abu Hanifa fixed the age of puberty for boys at 18 years old, and according to a second account, he fixed it at the age of 19 years old – the latter being the accurate. In his book Al-Ashbah wa’l-Nazai’r (page 306), Hanafi scholar Zainuddin bin Najim further explained this by saying: ‘he is a fetus as long as he is in his mother’s womb, and once he is born, he is a boy until puberty and a child until he is 19 years old.”

Meanwhile Sheeba is hoping to save the four children via a different approach. “The death sentence has not been revoked despite going through the entire litigation process. However, we hope (we will save them). We are working with the aggrieved party to move forward towards issuing an amnesty and reaching a settlement so that the victims family accept a ‘diya’ (the arabic term for blood money).”